OIP Guidance

The Supreme Court, in a unanimous opinion authored by Chief Justice Roberts, ruled yesterday, March 1, 2011, that corporations do not have "personal privacy" interests under Exemption 7(C) of the Freedom of Information Act. In FCC v. AT&T, Inc., No. 09-1279, 2011 WL 691243 (U.S. Mar. 1, 2011), the Supreme Court reversed the decision of the Court of Appeals for the Third Circuit which had recognized such interests for corporations.

The case arose after a trade association that represented competitors of AT&T made a FOIA request for records regarding an investigation of AT&T conducted by the FCC. AT&T raised objections to disclosure and the FCC withheld some of the requested information under Exemption 4. The FCC also protected the privacy of individuals under Exemption 7(C), but did not apply Exemption 7(C) to the corporation itself. AT&T challenged that disclosure decision in the Third Circuit. The Third Circuit then ruled that because the FOIA defined the word "person" to include corporations, Exemption 7(C)'s use of the term "personal privacy" extended to corporations since the word "personal" is derived from the root word "person." AT&T, Inc. v. FCC, 582 F.3d 490, 497-98 (3d Cir. 2009).

The FCC, joined by multiple groups including The Reporters Committee for Freedom of the Press, the American Society of News Editors, the Associated Press, Citizens for Responsibility and Ethics in Washington, the ACLU, the Electronic Frontier Foundation, the National Security Archive and Openthegovernment.org who filed amicus briefs, petitioned the Supreme Court for certiorari. The Supreme Court, after briefing and oral argument, reversed the decision.

AT&T, using the same approach that the Third Circuit had adopted, argued that "‘[b]y expressly defining the noun 'person' to include corporations, Congress necessarily defined the adjective form of that noun--'personal'--also to include corporations.'" FCC v. AT&T, Inc., 2011 WL 691243, at *4 (quoting AT&T's Brief and adding emphasis). The Supreme Court "disagree[d]."

First, the Court provided examples of adjectives that differ from the meanings of their corresponding nouns. For example, the Court noted, the "noun 'crab' refers variously to a crustacean and a type of apple, while the related adjective 'crabbed' can refer to handwriting that is 'difficult to read.'" Id. (quoting Webster's Third International Dictionary 527 (2002)). As a result, "in ordinary usage, a noun and its adjective form may have meanings as disparate as any two unrelated words." Id.

Moreover, the Court held that "[w]hen a statute does not define a term" the Court will "typically 'give the phrase its ordinary meaning.'" Id. at *5 (quoting Johnson v. United States, 130 S.Ct. 1265, 1270 (2010)). The Court then found that "[w]e do not usually speak of personal characteristics, personal effects, personal correspondence, personal influence, or personal tragedy as referring to corporations or other artificial entities." Id. Indeed, the Court noted, "we often use the term 'personal' to mean precisely the opposite of business-related" and refer to "personal expenses and business expenses, personal life and work life, personal opinion and a company's view." Id.

Although AT&T argued that in the legal context the term "person" can apply to corporations, the Supreme Court held that "[w]hen it comes to the word 'personal,' there is little support for the notion that it denotes corporations, even in the legal context." Id. at *6. Moreover, the Court found that "‘when interpreting a statute'" the Court will "‘construe language . . . in light of the terms surrounding it.'" Id. (quoting Leocal v. Ashcroft, 543 U.S. 1, 9 (2004)). Given that Exemption 7(C) refers to "personal privacy," the Court finds that the phrase "suggests a type of privacy evocative of human concerns—not the sort usually associated with an entity like, say AT&T." Id. The Court concludes that "AT&T has given us no sound reason in the statutory text or context to disregard the ordinary meaning of the phrase 'personal privacy.'" Id.at *7.

The Supreme Court went on to explain that the meaning of the phrase "personal privacy," as used in Exemption 7(C), "is further clarified by the rest of the [FOIA] statute." Id. at *8. The Court found that "because Congress used the same phrase in Exemption 7(C)" as it did in Exemption 6, "the reach of that phrase in Exemption 6 is pertinent in construing Exemption 7(C)." Id. By contrast, the Court found, Congress did not "use language similar to that in Exemption 4" when it drafted Exemption 7(C). Id. As a result, the Court concludes that "at the time Congress enacted Exemption 7(C), it had in place an exemption that plainly covered a corporation's commercial and financial information, and another that [the Court has] described as relating to 'individuals.'" Id. Exemption 7(C) "tracks the latter." Id.

The Court concludes by citing to the Department of Justice's Attorney General's Memorandum on the 1974 Amendments to the FOIA which states that Exemption 7(C) "‘does not seem applicable to corporations or other entities.'" Id. at *9 (quoting Attorney General's 1974 Amendments Memorandum). The Court holds that it has "previously viewed this Memorandum as a reliable guide in interpreting FOIA," and that it "agree[s] with its conclusion here." Id.

Thus, the Supreme Court "reject[s] the argument that because 'person' is defined for purposes of FOIA to include a corporation, the phrase 'personal privacy' in Exemption 7(C) reaches corporations as well." Id. The Court squarely holds that the protection afforded to law enforcement information "on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations." Id. On a light note, the Court closes with the following remark: "We trust AT&T will not take it personally." Id.